[2024] KEHC 3938 (KLR)
The court found that the applicant, having served a significant portion of his sentence for a misdemeanour and being a first offender, should not continue to serve a custodial sentence. The court considered the objectives of sentencing, the nature of the offence, the recovery of the stolen item, and the lack of...
Source-derived case information.
- Citation
- [2024] KEHC 3938 (KLR)
- Parties
- Applicant: Miyango Mike; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Eldoret
- Jurisdiction
- Kenya
- Case Number
- Criminal Revision E017 of 2024
- Procedural Posture
- Criminal Revision / Sentence Review Ruling
- Outcome
- Application for sentence review allowed; custodial sentence substituted with probation.
- Judges
- RN Nyakundi
- Legal Topics
- Sentencing Guidelines, Non Custodial Sentence, Probation Orders, Misdemeanour Offences
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Miyango Mike
Applicant
Republic
Respondent
Procedural Posture
Criminal Revision / Sentence Review Ruling
Legal Issues
- 1 Whether the applicant should serve a non-custodial sentence for the offence of stealing.
- 2 Whether the applicant's status as a non-Kenyan and alleged flight risk justifies continued custodial sentence.
Ratio Decidendi
The court found that the applicant, having served a significant portion of his sentence for a misdemeanour and being a first offender, should not continue to serve a custodial sentence. The court considered the objectives of sentencing, the nature of the offence, the recovery of the stolen item, and the lack of substantial risk of flight. The applicant's status as a non-Kenyan was not, in itself, sufficient to justify continued incarceration. The court held that a non-custodial sentence under probation for the remainder of the sentence period was appropriate, balancing the interests of justice, rehabilitation, and community protection.
Court Disposition
Application for sentence review allowed; custodial sentence substituted with probation.
Orders
- The applicant is placed on probation for 2 months under the supervision of the probation officer.
- The applicant shall serve a non-custodial sentence for the remainder of the sentence period.
Full Case Text
Judgment text and source record
21 paragraphs
Mike v Republic (Criminal Revision E017 of 2024) [2024] KEHC 3938 (KLR) (23 April 2024) (Ruling)
Neutral citation: [2024] KEHC 3938 (KLR)
Republic of Kenya
In the High Court at Eldoret
Criminal Revision E017 of 2024
RN Nyakundi, J
April 23, 2024
Between
Miyango Mike
Applicant
and
Republic
Respondent
Ruling
Representation:Mark Mugun for the state 1. The applicant was charged with the offence of stealing contrary to section 268 as read with section 275 of the Penal code. The particulars of the offence are that on the 29th day of December, 2023 at around 1000hrs at Mariot estate race-course ward in Kapseret sub-county within Uasin-Gishu County, stole 65 kgs of Maize valued at Kshs. 6,500/=, the property of James Rotich. 2. The applicant pleaded guilty to the offence before Hon. Kesse on 3rd January, 2024 and as a consequence, he was convicted on his own plea of guilty and sentenced to serve 6 months imprisonment.
3. The applicant has approached this court pursuant to sections 357,362,364& 382 of the Criminal Procedure Code as construed with Article 50(2) (p) & (q) as conjunctively read with Article 50(6)(a)&(b) of the Constitution.
4. The applicant seeks a sentence review. He prays that he may be allowed to serve a non-custodial sentence. The probation officer filed a report on 11th April, 2024. The Probation report is not responsive. The Probation officer indicated that the applicant is a flight risk for reasons that he is not of Kenyan origin and therefore he should serve the remaining period in custody.
5. In determining whether to impose a custodial or non-custodial sentence, the court is required to take into account the following factors: -a)Gravity of the offence: - sentence of imprisonment should be avoided for misdemeanour.b)Criminal history of the offender. Taking into account the seriousness of the offences, first offenders should be considered for non-custodial sentence.c)Character of the offender: - non-custodial sentence are best suited for offenders who are already remorseful and receptive to rehabilitative measures.d)) Protection of the community: - where the offender is likely to pose a threat to the community.e)Offender’s responsibility to third parties: - where there are people depending on the offender.
6. I have considered the offence in question and the aggravating factors. The sentencing objectives in Kenya have been captured in the Sentencing guidelines 2023 to be the following: -i.Retribution: to punish the offender for his/her criminal conduct in a just manner.ii.Deterrence: to deter the offender from committing a similar offence subsequently as well as to discourage other people from committing similar offences.iii.Rehabilitation: to enable the offender reform from his/her criminal disposition and become a law-abiding person.iv.Restorative justice: to address the needs arising from the criminal conduct such as loss and damages.v.Community protection: to protect the community by incapacitating the offender.vi.Denunciation: to communicate the community’s condemnation of the criminal conduct.vii.Reconciliation: To mend the relationship between the offender, the victim and the community.viii.Reintegration: To facilitate the re-entry of the offender into the society.
7. My considered view is that considering the aforementioned factors and the objectives of sentencing in totality, the applicant ought to serve a non-custodial sentence. He has a remainder of two months and I believe the period he has served in custody has shaped his character. I see no reason why he should continue to serve a custodial sentence. Yes, he is not of the Kenyan origin but I see no reason why one would flee from the country for such a misdemeanor, and which in any case the stolen item was recovered. In the end, I am inclined to direct that he serves a non-custodial sentence for the remainder of the sentence period. The applicant is hereby placed on probation for 2 months. The same shall be done under the supervision of the probation officer.
SIGNED, DATE AND DELIVERED AT ELDORET THIS 23RD DAY OF APRIL 2024. .........................R. NYAKUNDIJUDGE